Of Obama's Court

It won't be too much longer till the confirmation hearings commence on President Obama's first nominee to the Supreme Court, Sonia Sotomayor. The lines of support and attack have been preemptively drawn and to date, at least, have been predictable.

By now, we are aware of Sotomayor's impressive resume: Her father died when she was 9. Her mother, a nurse, raised her in a housing project in the Bronx. Sotomayor excelled in school and went undergraduate to Princeton, graduating with honors. She went on to Yale Law School and started her legal career with the Bronx District Attorney's office. Eventually she became a Federal Judge in New York City where she currently sits. If confirmed she will become the first Supreme Court judge of Puerto Rican descent. (However, unlike conventional wisdom dictates, not the first judge of Spanish descent: That honor goes to Benjamin Cardozo who was a Sephardic Jew).

Detractors are suspicious of her sympathies. They have pointed to a speech she made at Berkeley in 2001 in which she said about cases involving discrimination, "a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.”

Additionally some have accused her of being a judicial activist pointing to comments she made at a speech at Duke Law School: "All of the legal defense funds out there, they're looking for people with court of appeals experience because it is...court of appeals is where policy is made...and I know, and I know this is on tape and I should never say that because we don't make law I know [audience laughter] ... um, I, okay, I know, I know....I'm not promoting it, I'm not advocating it, I'm, [audience laughter] you know [Sotomayor laughter] okay."

A 3rd avenue of attack is Sotomayor's her failure to offer an opinion in Ricci v. DiStefano, a highly political case which was blogged about in this column last month. The matter was heard when rumors were forming that Sotomayor might be on the shortlist of Supreme Court nominees should an opening arise. That case involves a white firefighter in New Haven, Connecticut who was denied a promotion despite scoring near the top on the Lieutenant's exam. The exam was thrown out because no blacks would have been promoted had promotions been awarded based upon the merited scores.

The Second Circuit Court of Appeals found in favor of Connecticut on the issue of discrimination, but in a highly unusual decision in such a case of political interest, did so summarily without offering an opinion. Critics point to that decision as a way of insulating Sotomayor from critics. The case has been since taken on appeal by the United States Supreme Court which should be issuing an opinion in the fall. Even if Sotomayor is confirmed, she will not be one of the judges who will be deciding the case.

Most of the criticism is smoke screen. Sotomayor has earned a reputation, from her days prosecuting criminals in the Bronx, and on the bench, as someone who is not easy on crime. In her remarks about being a "wise Latina" she was specifically speaking to the issue of discrimination lawsuits. She was not saying as some critics have suggested, that being a Latina gives her special insight in all cases. It is a truism that anyone's experience might give them insight that others do not have. The law recognizes this. That's why juries of disinterested lay persons are a fundamental part of our justice system. We have decided as a people that we want citizens who are not versed in the law, judged by other unbiased citizens of similar experience; a jury of one's peers.

As for the argument that Sotomayor sees nothing wrong with "making policy" as a judge. Well lets just get over this strict constructionist v. judicial activist nonsense. Perhaps the most activist decision the past decade was the Supreme Court's decision to end the balloting in Florida when George W. Bush and Al Gore were effectively deadlocked in the 2001 Presidential election. There is nothing in Constitution which takes the election of the President away from the Electoral College, nor from the States in deciding how to apportion its electoral votes. Yet the Supreme Court opted to rule as they did in deference to the country, as they put it.

Sotomayor was stating nothing that dispassionate observers do not already note. Sometimes interpreting law is the same as making it. The role of judges is to decide the gray. If everything was obvious there would be no arguments, no lawsuits and no need for lawyers or judges. But as the saying goes difference of opinion and belief is what make us human. It is the lawyer's job to advocate and a judge's job to weigh the equities, deciding what is fair and what is just.

It would be a huge shocker if Judge Sotomayor does not get confirmed. At this point it seems a foregone conclusion. It's not surprising that considering his background President Obama selected Sotomayor first. Nominees cannot be judged as a success or failure before they are confirmed, nor often, in their lifetimes. However my prediction is that if Sotomayor gets seated, as seems likely it will not only eventually be a source of pride for the Latina community nor even the Latin community as a whole but rather one which shows off the strength of the American Constitution and the American people.